The tattoo industry is sizable in America, with 21,000 tattoo parlors in operation and revenues totaling $1.65 billion. Piercings, too, are popular with 14% of Americans sporting piercings in locations other than the earlobes. Both tattoos and piercings become an issue in the hiring process when company culture dictates that these increasingly widespread forms of self-expression are not acceptable.
Yet, more and more workplaces are forgoing judgment on the issue and hiring tattoo wearers even with the presence of tattoos that are visible to the public. In some cases, company policy may require tattoo wearers and employees with piercings to cover them with bandaids or long sleeves, but more and more employers welcome body art, saying it adds diversity to the workforce.
Last year, there were nearly 9100 charges of hiring discrimination brought to the Equal Employment Opportunities Commission (EEOC), with claims ranging from discrimination based on age and race to disability and national origin. However, it is not likely that many of these were based on the presence of tattoos or piercings.
This is because tattoo wearing and piercing is not covered under Title VII and other employment discrimination laws.
The exception would likely be if the tattoo or piercing was donned for religious reasons or in some way was tied to an employee’s national origin. These are protected categories under the most salient employment discrimination laws at both the federal and state level.
Unless the act of donning a tattoo or insisting on a piercing at work is based on one of these legally protected categories and results in adverse employment action, it’s unlikely to be protected by the law.
What Is a Protected Class?
A protected class or group is a segment of American society deemed worthy of legal protection due to certain characteristics shared by all members of the group. Various combinations of protected categories are listed in federal and state employment discrimination law, with the most common being age, race, color, national origin, gender and disability.
The classes are usually based on groups that have historically been discriminated against as a whole. For instance, the original civil rights laws were aimed at rectifying discrimination against women and African-Americans. As anti-discrimination law evolved, more groups were added or the laws protecting them became more clearly defined.
For example, new to the legally protected categories in some federal and state laws are members of the LGBT community. Their protection routinely falls under laws prohibiting discrimination based on sexual orientation and gender identity. However there is currently no protected class of tattooed and pierced individuals, despite the growing popularity of these trends.
Employer’s Rights and Dress Codes
Today, 14% of all Americans and 40% of those age 26-40 have at least one tattoo. While the practice is welcome in workplaces such as Borders, a national book-selling chain, where employers say body art makes an employee more interesting and is an asset to the job, more conservative employment environments still have strict policies in place against it.
Provided there are no prejudices involved, an employer has the right to refuse to extend a hiring opportunity to someone with tattoos or piercings. This is because an employer has the right to refuse to hire anyone it deems unsuitable or inappropriate for the position. The employer must only abide by the laws that protect the classes of individuals noted in federal and state law.
An employer also has the right to establish lawful dress codes and to maintain those policies by asking employees to cover their tattoos or to remove piercings. This puts the employer in control of the work environment and leaves it up to hiring managers to decide whether a particular candidate’s body art is acceptable and in compliance with company policy and image.
However, with the increasing prevalence of tattoos and piercings in the workforce, hiring managers often must weigh the benefits of bringing a job applicant into the company against the dictates of company culture and image.
Robert v. Ward
One of the most important cases to be heard on the subject of tattoos and piercings in the workplace is Robert v. Ward. Decided by the 6th Circuit Court of Appeals in 2006, Robert v. Ward sparked a debate about whether a state park’s dress code policy, requesting that tattoos be covered and all piercings except earlobe piercings be removed, had, among other complaints, an unequal impact on the plaintiffs.
The Court of Appeals ruled it did not. The plaintiffs alleged that since the email containing the policy was sent to seasonal workers working outside in the summer, it would have a more “onerous” impact on them than on office workers – a violation of their 14th Amendment rights. The Court explained in its opinion that since the policy applied to all park workers, it did not raise any equal protection concerns.
The court reasoned that since the plaintiffs had not argued that the state park’s policy targeted a protected group – one that has “historically been the victim of discrimination or otherwise reflects invidious discrimination” – no equal protection violation had occurred.
The decision is a reiteration of many court rulings that hold in favor of dress code policies, however onerous, that place limits on tattooed or pierced employees. This means employers are free to regulate the physical appearance of its employees as long as it’s done in a non-discriminatory and equitable way, and that employers are free to refuse to hire employees that do not conform to standards addressed in company policy or comply with the desired company image.
No Protection According to Law
When it comes to hiring discrimination, tattoos and piercings, in most cases, don’t qualify for protections under the law. This is because individuals who choose to wear body art don’t belong to a protected class as described in federal and state employment discrimination laws – laws designed to protect groups historically treated unfairly as a whole. However, tattoos and piercings are becoming increasingly more acceptable on the job as the numbers of workers wearing them continue to rise.